Generative AI: Media And Entertainment Considerations

The future is now. Generative artificial intelligence ("AI") can be used to generate new content, including text, images, animation, video, software code and music. Although AI itself is not new, it has come into sharp focus in recent months, accelerated by the availability and widespread adoption of user-friendly programs such as ChatGPT¹, DALL-E, Stable Diffusion/Dream Studio, Midjourney, Jasper and CopyAI.

There are numerous content-related applications for AI among media and entertainment companies, depending on the type of company (e.g., publisher, video game company, creative agency, studio/production company) and the specific use cases. Potential applications include generating ideas and content, fact-checking, editing text, moderating misinformation and content targeting and ranking. Already, to name a few of the use cases among media and entertainment companies, we have seen publishers such as CNET using AI to assist in the writing of certain content² and BuzzFeed embracing AI to enhance and personalize certain types of content offerings, video game creators such as Naughty Dog using AI to create the environment for the highly popular "The Last of Us" video game, creative agencies using AI for different content creation, and entertainment companies adopting AI technologies to augment visual effects, preserve and colorize film, localize content, alter actors' facial expressions³ , age and de-age actors' faces⁴, and generate synthetic human voices. This article will focus on content (not code) generation applications and key U.S. legal considerations bearing upon them.

The legal landscape surrounding the use of AI for content applications is uncertain and rapidly evolving; some have likened the current stage of AI to the early days of Napster.⁵ The use of AI tools involves legal and reputational risks that clients (and media and entertainment companies in particular) must carefully manage. We address below some of the legal and ethical considerations associated with the creation of so-called "synthetic media."

• Intellectual Property and Confidentiality
  • Copyright Infringement: Can AI-generated content ("outputs") be considered a derivative work or implicate the right of reproduction?⁶ Is it infringement or inspiration? Providers of AI tools use data-scraping to train their AI models ("inputs").⁷ To the extent that there is copyright infringement or that such data-scraping otherwise constitutes copyright infringement or a Digital Millennium Copyright Act violation due to the removal of copyright management information, are there arguments that such uses are permitted under the fair use doctrine or an implied license?⁸ With respect to the fair use question, are AI outputs sufficiently transformative to be eligible for a fair use defense?⁹ A few closely watched lawsuits are expected to provide some clarity on these issues.¹⁰ Who is liable when the AI's output is deemed to infringe someone else's copyright? If an AI tool provider is found to have infringed third-party copyrights, could a media company using such a tool be liable for infringement as well? It bears mentioning that copyright infringement can be direct, contributory, or vicarious. To complicate matters further, some publishers and other content producers could find themselves on both sides of the AI usage aisle ' as content owners seeking to be paid for the use of their content to train AI models and as users of AI tools to generate their content.¹¹
  • Copyright Protectability: The U.S. Copyright Office recently denied an attempt to register copyright in individual images created using the Midjourney AI tool.¹² At the same time, the Office said that it "will register works that contain otherwise unprotectable material that has been edited, modified, or otherwise revised by a human author, but only if the new work contains 'a sufficient amount of original authorship' to itself qualify for copyright protection."¹³ While this decision could be appealed, it provides directional guidance and suggests that the more human alteration and involvement is involved in the creative process, the more likely the creator will be able to claim copyright in the finished work. On March 10, 2023, the U.S Copyright Office published guidance on the copyrightability of works created using generative AI.¹⁴ That guidance reaffirms that some amount of "creative input or intervention from a human author" is required." But, of course, that begs the question, how much?
  • Trademark Infringement and Unfair Competition: In its lawsuit against Stable Diffusion in the United States District Court for the District of Delaware, Getty Images asserts inter alia, that the inclusion in Stable Diffusion/DreamStudio's outputs of Getty Images marks or visually degraded versions thereof give rise to claims of trademark infringement, unfair competition, trademark dilution and deceptive trade practices.¹⁵ Could media companies that publish such outputs have liability for doing so?
  • Right of Publicity: AI may be used to alter an individual's voice and image, thereby raising questions about whether an individual can control the right to use their voice or image for...